Norwegian Court Orders Website Of Public Domain Court Decisions Shut Down With No Due Process

from the this-is-messed-up dept

What's up Europe? We've been talking a lot about insanity around the new copyright directive, but the EU already has some pretty messed up copyright/related rights laws on the books that are creating absurd situations. The following is one of them. One area where US and EU laws differ is on the concept of the "database right." The US does not grant a separate copyright on a collection of facts. The EU does. Studies have shown how this is horrible idea, and if you compare certain database-driven industries in the US and the EU, you discover how much damage database rights do to innovation, competition and the public. But, alas, they still exist. And they continue to be used in positively insane ways.

Enter Hakon Wium Lie. You might know him as basically the father of Cascading Style Sheets (CSS). Or the former CTO of the Opera browser. Or maybe even as the founder of the Pirate Party in Norway. Either way, he's been around a while in this space, and knows what he's talking about. Via Boing Boing we learn that: (1) Wium Lie has been sued for a completely absurd reason of (2) helping a site publish public domain court rulings that (3) are not even protected by a database right and (4) the judge ruled in favor of the plaintiff (5) in 24 hours (6) before Lie could respond and (7) ordered him to pay the legal fees of the other side.

I've numbered these because I had to break out each absurd part separately just to start to try to comprehend just how ridiculous the whole thing is. And now, let's go through how each part is absurd in turn:

1. Wium Lie is being sued as an accomplice to the site rettspraksis.no by an operation called Lovdata. Wium Lie tells the entire history in his post, but way back in the early days of the web, while he was helping to create CSS, Wium Lie also helped put Norway's (public domain) laws online. At the time, that same company, Lovdata, was charging people $1-per-minute to access the laws. Really. Eventually, Lovdata dropped the fees and is the official free publishers of the laws in Norway. Of course, statutory law is just one part of "the law." Case law is also quite important and (thankfully) court orders (that make up the bulk of case law) are also in the public domain in Norway. However, Lovdata charges an absurd $1,500 per year to access those decisions. And, it claims a database right* on the collection it makes available online.

2. And yet, Wium Lie is still being sued. Why? When he saw that the website rettspraksis.no was trying to collect and publish these decisions, he borrowed Lovdata CD-ROMs from the National Library in Oslo. He borrowed the 2002 version of the CD-ROM. This date is important, because the EU's database rights last for... 15 years. 2002 databases (and, yes, Wium Lie points out that it's odd to call a stack of documents a database...) are no longer protected by the database rights.

3. So, yeah, the data is clearly in the public domain, and Wium Lie didn't violate anyone's copyright or database rights. Wium Lie notes that Lovdata didn't even try to contact him or rettspraksis.no before suing, but just told the court that they must be scraping the expensive online database:

I'm very surprised that Lovdata didn't contact us to ask us where we had copied the court decisions from. In the lawsuit, they speculate that we have siphoned their servers by using automated «crawlers». And, since their surveillance systems for detecting siphoning were not triggered, our crawlers must have been running for a very long time, in breach of the database directive. The correct answer is that we copied the court decisions from the old discs I found in the National Library. We would have told them this immediately if they had simply asked.

4. This is the most perplexing to me in all of this. I can't read the Norwegian verdict (which, for Lovdata's lawyers, I did not get from scraping your site!), and don't know enough about Norwegian law, but this seems positively bizarre to me. It seems to go against fundamental concepts of basic due process, but how could a judge come out with a verdict like this?

5. ?!?>#$@!%#!%!@!%!#%!!

6. Again: is this how due process works in Norway? In the US, of course, there are things like preliminary injunctions that might be granted pretty quickly, but even then -- especially when it comes to gagging speech, there is supposed to be at least some element of due process. Here there appears to have been something close to none. Furthermore, in the US, this kind of thing would only be allowed if one side could show irreversible harm from leaving the site up. It is difficult to see how anyone could legitimately argue irreversible harm for publishing the country's own (public domain) court rulings.

I find it shocking that the judge ordered the take down of our website, rettspraksis.no, within 24 hours of the lawsuit being filed and WITHOUT HEARING ARGUMENTS FROM US. (Sorry for switching to CAPS, but this is really important.) We were ready and available to bring forth our arguments but were never given the chance. Furthermore, upon learning of the lawsuit, we, as a precaution, had voluntarily removed our site. If the judge had bothered to check he would have seen that what he was ordering was already done. There should be a much higher threshold for judges to close websites that just the request of some organization.

7. And, even if this was the equivalent of an injunction, to also tell Wium Lie and rettspraksis.no that they need to pay Lovdata's legal fees is just perplexing.

the two of us, the volunteers, were slapped with a $12,000 fee to cover the fees of Lovdata's own lawyer, Jon Wessel-Aas. So, the judge actually ordered that we had to pay the lawyer from the opposite side, WITHOUT HAVING BEEN GIVEN A CHANCE TO ARGUE OUR CASE.

This whole situation is infuriating. Being sued is a horrible experience in the first place. But the details here pile absurd upon preposterous upon infuriating. The whole database rights concept is already a troublesome thing, but this application of it is positively monstrous. Wium Lie now has some good lawyers working for him, and hopefully this whole travesty will get overturned, but what a clusterfuck.

* A separate tangent that I'll just note here rather than cluttering up all of the above. I was a bit confused to read references to the EU's database directive/database rights, because Norway is not part of the EU. However, since it is a part of the European Economic Area (yes -- this can all get confusing), it has apparently agreed to enact legislation that complies with certain EU Directives, including the Copyright and Database Directives.

Reader Comments

Good old fractally wrong...

I can only assume that the judge in this case either makes a habit of showing up drunk to court, or tripped down an entire flight of stairs, slamming their head on each step on the way down while on the way to the court-room, because you'd almost have to have some serious cranial impediment for that ruling to even begin to start to make sense.

No real trial, no other side, simply 'here's everything you asked for, no questions asked, oh and we'll make the other side(which wasn't invited) pay whatever you feel like saying your legal fees are, because screw them.'

(Seriously, twelve-thousand in legal fees for a case where the other side wasn't invited? They're either some of the most highly paid lawyers around, or they padded the bill like crazy simply because they could.)

Hopefully they can get this legal abomination overturned post-haste, and even better if the judge involved in this case gets a hefty benchslap/'what the hell were you thinking?!' from a competent judge in the process.

Re: Good old fractally wrong...

It sounds like an Ex-Parte order was slapped on them. They are nasty, because it's only one party that presents its side of the issue to the judge. I expect that an appeal of this verdict is possible, but that will cost time and money to prepare.

Re: Re: Re: Good old fractally wrong...

Alas, publishers did lobby hard enough in Brussels to get the abomination of ex-parte orders enshrined in EUropean copyright law. The judge that gave the order had to work within the procedures and was (legally) bound to base his/her order on the information provided by Lovdata, without giving an opportunity for Wium Lie to present his side of the case.

If there's an issue of corruption here it would be in the EU law-making department, not with this individual judge.

Re: Re: Re: Re: Good old fractally wrong...

Re: Re: Re: Re: Good old fractally wrong...

Seems like vacating the order for failure to serve notice would be appropriate. Alternately the order only applies to those parties who were properly served notice. If you choose not to appear then you deserve what the judge decides, if you were never notified then it is merely a sham trial.

Re: Re: Good old fractally wrong...

An ex parte order is supposed to be a remedy for defendants who refuse to show up in court, or for dire emergencies. While using them for ALL lawsuits would certainly speed up the docket, I can't imagine any country other than a third world dictatorship actually doing so.

If the defendant is not actually a party to the lawsuit, and the requirements for an ex parte order were not met, the judge would have no jurisdiction over the defendant in the US, rendering the order unenforceable -- is Norway's court system truly THAT backward?

Re: Re: Re: Good old fractally wrong...

It is sad, if the Norwegian justice system slides further backward it will soon be down to the level of the US. Nobody wants that level of uselessness, malevolence, vindictiveness, lack of respect for the rule of law, and systematic racism, so hopefully the Norwegian system will get their act together.

Re: Re: Re: Good old fractally wrong...

Case Law in Europe

In your first part you state "Case law is also quite important ...". For me that sounds about right for US or British law. But as far as I know we have statutory law in most european countries: https://en.wikipedia.org/wiki/Common_law

Re: Case Law in Europe

Conceptually, civil law proceeds from abstractions, formulates general principles, and distinguishes substantive rules from procedural rules.[4] It holds case law secondary and subordinate to statutory law.

Re:

Only if he consistently rules for them. If his trigger-happy dishonor rules that way on EVERY case, the first time file could achieve some AMAZING things. And if the copyright maximalists aren't the first to file...

Re: Speaking of lack of due process - drug dogs blowback

the EU collectively and member countries that are part of the EU are getting absolutely more and more like the country that seems to be always swinging the club, ie, Germany! has it not learned anything from history? it has been defeated in 2 world wars and if it thinks it can get away with a third attempt, simply by using finance and law rather than violence, i am sure it will again come unstuck. for countries like Norway to follow the ridiculous ways of Germany, doing, basically what it is told, just as in previous times, sooner or later the people will rebel, again!!

Re: Horrible Idea

Well, the founding fathers thought in terms of time that a reasonable business person can take advantage of the copyright, i.e. get his/her book published (and other analogues to that).

But in those days, that was "real time" to them - there was never any reason to anticpate otherwise. Nowadays, we operate on something that the F.F. never dreamed of, internet time. Call it anywhere from 10,000 to 100,000 times faster that what they saw in 1776. To me, that means that copyright is a valid concept, but it needs to be adjusted for today's world. Let's just set it at 6 months and call it a day, shall we?

And while I have this nice, sturdy soapbox under my feet.... Who in the Lowered's name took it upon him/herself to think that a dead person can be persuaded to create more works just because his/her grandchildren inherited the copyright? No one else in the family inherited the creativity to come up with new stuff, or they'd already be doing it under their own name!

Moreover.... (yeah, yeah, I'll get it out of my system RSN.) We could certainly fix copyright in a hurry, if we just adhered to the original convention - a person has copyright for the duration of yadda yadda, blah blah, woof woof, and so on. Nowhere in there was it ever anticipated that the copyright would be sellable as a commodity. Simply restore the concept of copyright as belonging solely to the creator, unsellable and unheritable by explicit law, and we're done here.

I daresay, if the public knew even a fraction of what it has lost in potential creativity, the reaction would dwarf what happened in Germany in the 1930's.

And if push really came to shove, let's start bombarding our representative (or more correctly, those who claim with a collectively straight face to represent us) with copies of The Meloncholy Elephant by Spider Robinson. Seems like about the right time for that little "civic intercourse" with them, eh?

Re: Re: Horrible Idea

Re: Re: Horrible Idea

"Simply restore the concept of copyright as belonging solely to the creator, unsellable and unheritable by explicit law, and we're done here."

So who gets the copyright on a movie: the producer, the director, the screenplay writer, the cinematographer? You're heading in the right direction, but there are worlds undreamt of in your "simple" answer. Any collaborative work will have this difficulty, of splitting the copyright. So it makes sense to allow them to be owned by groups of people.

As I say, you're headed in the right direction: fixed term after publication or registration, and replacing copyright "transfers" with permanent unrestricted licenses are good. The collective works are still an issue, though: If we accept that certain roles in the creation of a collaborative work qualify as creative enough to merit copyright, but others don't, where do we draw the line? Once you've defined a group that owns the copyright for the work, how do they organize around the ownership: corporation, partnership, LLC?

One reason copyright has grown up the way it has is because content creation is a risky business, so it requires investors who are willing to invest in a series of failures for that one big hit (kind of like VC). If each work is collectively going to be owned by the creators, and is non-transferable to an investor class, you make the risk/reward ratio even worse for the investors, and put more of the risk on the people who actually created the work. So just like most other proposals for copyright reform, it would completely dismantle the media industry structure.

Long term, that would probably be a good thing, but can we get there from here without massive unemployment and bankruptcies along the way?

Re: Re: Re: Horrible Idea

I guess my description did leave out few things.

In my purview, there is only one creator, or a partnership wherein each partner contributes a known amount of effort in a creation. All other persons who did not participate in the immediate act of creation are hangers-on, sucking at the teat of creativity. This is not to demean the day-to-day workers, but in point of fact, they only helped to bring a story to a screen (or to a stage, a book, etc.) - they did not create the story. This applies especially to those you termed as risk-takers/investors.

In my view, risk is automatically an assumption upon the very act of creativity. If a created product does not sell, then the creator has lost at least some time and effort, and perhaps some money as well. So to spread some of that risk to others, by way of investment, that's easy - create a temporary partnership that allows for a full recoupment of the investment, plus a handsome ROI, perhaps even a royalty that goes on for a period of time. But the copyright for the created work remains with the creator, it does not transfer for any reason. Why? Because we've seen all to often that some bigwig will get their hands on a property, tell the creator that they can't do anything with it after all, then turn around and produce it with another's name on the credits screen. Happens more often than one might think.

As for actors, directors, band members, roadies, costumers, non-creating singers, all such folks... they too are just helpers along the way to publishing the story - they are not story creators, although I will give them their due credit - they can (and do) often make a difference in how the enacted story is received. Compensation for varying degrees of accomplishment can certainly be negotiated, but it should not be to the detriment of the creator.

Bottom line here: a story is just that. A story translated to a different medium is still a story by that creator, regardless if he/she intended it for such translation. Pretensions of "big risk that must have commensurate rewards" is only a lawyer's dream in taking money from the deserving (the creator) and partying the night away.

Re: Re: Re: Horrible Idea

About the only Industry who invest large amounts of money in the creation of a new work is the Film and TV industry. For records and books, and in particular books, the big investment was in producing large batches of copies before selling the first copy. Indeed, copyright was originally tailored to suite the printing industry, where setting movable type, and printing a book section by section was a large investment of labor and materials.

Indeed, the investment of time in creating new scripts, books, music and songs is not particularly well protected by copyright Before the Internet, most of that creativity went unrewarded, because very few of the new works created were accepted by a publisher or labor for publication. Post Internet, self publishing has become affordable, that is essentially free, and if a creator can build enough of a fan base, they can make enough to become full time creators. While that means many more make a living from their creativity, most creators still need a day job, and many create because they want to tell a story, rather than they want to become rich from their creativity.

This has nothing to do with copyright.

At issue here is that Lovdata claimed a violation of their website terms of use by employing a web scraper.

The website takedown is then cutting off the purported perpetrators from the profits from their preposterous publication of the purportedly illicitly produced proceedings.

The result of the appeal will very much depend on how well the library story holds up. I know that a telephone book CD publisher here had Chinese typists type off whole physical phonebooks and then used the (copyrighted) CD database for an "error correction pass" that also added a few sentinel fake entries _only_ in the database.

If the library story pans out without "corrections" of that kind, the appeal should be a no-brainer since the claimed access has not happened.

If the story doesn't pan out in this manner because of such fake entries or other differences, this will get a lot more involved.

I'm neither a lawyer or norwegian but as I understand the ruling Ljond and Lie are:1. ordered to remove any court documents originating from lovdata.no from rettpraksis.no and delete any document downloaded from lovdata.no2. forbidden from transferring or assisting in transferring any documents covered in part 1 to a third party, or publinshing or assisting in publishing the documents on other digital platforms3. forbidden from deleting information about development, operations, publishing, use of and downloading of content from rettspraksis.no4. ordered to pay lovdata.no's court costs of about $12600

Re: Due process

Re: Re: Due process

How can a PRELIMINARY INJUNCTION demand the other party pay court costs? Seems a bit fishy to me...

Corruption.

Whether the judge is personally corrupt or whether the law itself is systematically corrupt, I'll leave to experts in Norwegian law, or at least Norwegian speakers. But on its face, the reported facts behind the decision speak loudly.

Re: Due process

As JoeCool noted, the last bit is the part that makes this confusing. If it is a preliminary injunction, then legal costs are inappropriate, because no finding of tortuous wrongdoing has been made. Moreover, the injunction can't be that limited. Limiting the injunction in the way this summary does guarantees Rettpraksis.no wont do a thing, because removing the documents proves tortuous actions. Its a worthless injunction.

Requiring the removal of contested documents from public access pending a hearing regarding accusations of tortuous action to prevent further tortuous action is an injunction.

Requiring that documents that may or may not have been obtained through tortuous means be removed if they were tortuously obtained, and pay legal fees whether or not they were, is not an injunction. Its a demand to admit your guilt and pay up.

Norway indeed has to swallow much of the EU rules -- without having a say in it -- for access to the single market.

Case law is not binding in civil law, but it is very important to inform a judge of precedents, and can significantly shape the outcome of cases. If this is indeed an ex-parte decision, I hope it will be reverted when handled on appeal; if not, I hope the public outcry will be such that the Norwegian government will take its responsibility and publish all those cases itself on a government site, where they do belong.